should be done or attempted, which might derogate from the sovereignty of the mother country. In the proprietary government the governors were appointed by the proprietaries, and legislative assemblies were assembled under their authority; and indeed all the usual prerogatives were exercised, which in provincial governments belonged to the crown.' Three only existed at the period of the American Revolution; viz. the proprietary governments of Maryland, Pennsylvania, and Delaware. The former had this peculiarity in its charter, that its laws were not subject to the supervision and control of the crown; whereas in both the latter such a supervision and control were expressly or impliedly provided for.3

§ 161. Thirdly, Charter Governments. Mr. Justice Blackstone describes them, (1 Comm. 108,) as "in the nature of civil corporations with the power of making by-laws for their own internal regulation, not contrary to the laws of England; and with such rights and authorities as are specially given them in their several charters of incorporation. They have a governor named by the king, (or, in some proprietary colonies, by the proprietor,) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England. Their general assemblies, which are their house of commons, together with their council of state, being their upper house, with the concurrence of the king, or his representative the governor, make laws suited to their own emergencies." This is by no means a just or accurate description of the charter governments.

1 Stokes's Hist. of Colon. 23.

21 Pitk. Hist. 55; Stokes's Hist. of Colon. 19; 2 Doug. Summ. 207. 3 1 Chalmers's Annals, 203, 637.

They could not be justly considered, as mere civil corporations of the realm, empowered to pass by-laws; but rather as great political establishments or colonies, possessing the general powers of government, and rights of sovereignty, dependent, indeed, and subject to the realm of England; but still possessing within their own territorial limits the general powers of legislation and taxation.' The only charter governments existing at the period of the American Revolution were those of Massachusetts, Rhode-Island, and Connecticut. The first charter of Massachusetts might be open to the objection, that it provided only for a civil corporation within the realm, and did not justify the assumption of the extensive executive, legislative, and judicial powers, which were afterwards exercised upon the removal of that charter to America. And a similar objection might be urged against the charter of the Plymouth colony. But the charter of William and Mary, in 1691, was obviously upon a broader foundation, and was in the strictest sense a charter for general political government, a constitution for a state, with sovereign powers and prerogatives, and not for a mere municipality. By this last charter the organization of the different departments of the government was, in some respects, similar to that in the provincial governments; the governor was appointed by the crown; the council annually chosen by the General Assembly; and the House of Representatives by the people. But in Connecticut and RhodeIsland the charter governments were organized altogether upon popular and democratical principles; the

1 1 Chalmers's Annals, 274, 275, 293, 687; 1 Tuck. Black. Comm. App. 385; 1 Pitk. Hist. 108; 1 Hutch. Hist. No. 13, p. 529; Mass. State Papers, 338, 339, 358, 359; Stokes's Hist. of Colon. 21; 1 Doug. Summ.

governor, council, and assembly being annually chosen by the freemen of the colony, and all other officers appointed by their authority. By the statutes of 7 & 8 William 3, (ch. 22, § 6,) it was indeed required, that all governors appointed in charter and proprietary governments should be approved of by the crown, before entering upon the duties of their office; but this statute was, if at all, ill observed, and seems to have produced no essential change in the colonial policy.

162. The circumstances, in which the colonies were generally agreed, notwithstanding the diversities of their organization into provincial, proprietary, and charter governments, were the following.

§ 163. (1.) They enjoyed the rights and privileges of British born subjects; and the benefit of the common laws of England; and all their laws were required to be not repugnant unto, but, as near as might be, agreeable to the laws and statutes of England.3 This, as we have seen, was a limitation upon the legislative power contained in an express clause of all the charters; and could not be transcended without a clear breach of their fundamental conditions. A very liberal exposition of this clause seems, however, always to have prevailed, and to have been acquiesced in, if not adopted by the crown. Practically speaking, it seems to have been left to the judicial tribunals in the colonies to ascertain, what part of the common law was applicable to the situation of the colonies; and of course, from a dif

1 1 Chalmers's Annals, 274, 293, 294; Stokes's Hist. Colon. 21, 22, 23. 2 1 Chalmers's Annals, 295,; Stokes's Hist. Colon. 20.

3 Com. Dig. Navigation, G. 1; Id. Ley. C.; 2 Wilson's Law Lect. 48, 49, 50, 51, 52.

4 1 Chalm. Annals, 677, 678, 687; 1 Tucker's Black. Comm. 384; 1 Vez. 444, 449; 2 Wilson's Law Lect. 49 to 54; Mass. State Papers, (Ed. 1818,) 375, 390, 391.

ference of interpretation, the common law, as actually administered, was not in any two of the colonies exactly the same. The general foundation of the local jurisprudence was confessedly composed of the same materials; but in the actual superstructure they were variously combined, and modified, so as to present neither a general symmetry of design, nor an unity of execution.

§ 164. In regard to the legislative power, there was a still greater latitude allowed; for notwithstanding the cautious reference in the charters to the laws of England, the assemblies actually exercised the authority to abrogate every part of the common law, except that, which united the colonies to the parent state by the general ties of allegiance and dependency; and every part of the statute law, except those acts of Parliament, which expressly prescribed rules for the colonies, and necessarily bound them, as integral parts of the empire, in a general system, formed for all, and for the interest of all.1 To guard this superintending authority with more effect, it was enacted by Parliament in 7 & 8 William 3, ch. 22, "that all laws, by-laws, usages, and customs, which should be in practice in any of the plantations, repugnant to any law made, or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect." 2

§165. It was under the consciousness of the full possession of the rights, liberties, and immunities of British subjects, that the colonists in almost all the early legislation of their respective assemblies insisted upon a

1 1 Chalmers's Annals, 139, 140, 684, 687, 671, 675; 1 Tucker's Black. Comm. 384, App.; 2 Wilson's Law Lect. 49, 50; 1 Doug. Summ. 213; 1 Pitk. Hist. 108; Mass. State Papers, 345, 346, 347, 351 to 364, 375, 390; Dummer's Defence, 1 American Tracts, 65, &c.

2 Stokes's Colon. 27.

declaratory act, acknowledging and confirming them.' And for the most part they thus succeeded in obtaining a real and effective magna charta of their liberties. The trial by jury in all cases, civil and criminal, was as firmly, and as universally established in the colonies, as in the mother country.

§ 166. (2.) In all the colonies local legislatures were established, one branch of which consisted of representatives of the people freely chosen, to represent and defend their interests, and possessing a negative upon all laws. We have seen, that in the original structure of the charters of the early colonies, no provision was made for such a legislative body. But accustomed as the colonists had been to possess the rights and privileges of Englishmen, and valuing as they did, above all others, the right of representation in Parliament, as the only real security for their political and civil liberties, it was easy to foresee, that they would not long endure the exercise of any arbitrary power; and that they would insist upon some share in framing the laws, by which they were to be governed. We find accordingly, that at an early period [1619] a house of burgesses was forced upon the then proprietors of Virginia.3 In Massachusetts, Connecticut, New-Hampshire, and RhodeIsland, the same course was pursued. And Mr. Hutchinson has correctly observed, that all the colonies before the reign of Charles the Second, (Maryland alone excepted, whose charter contained an express provision on the subject,) settled a model of goverment for themselves, in which the people had a voice, and represen

1 1 Pitk. Hist. 88, 89; 3 Hutch. Coll. 201, &c.; 1 Chalmers's Anna, 678; 2 Doug. Summ. 193.

2 1 Doug. Summ. 213 to 215.

3 Robertson's America, B. 9.

4 Tucker's Black. Comm. App. 386.